Citation Nr: 21074098 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 13-19 161 DATE: December 14, 2021 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to a temporary total evaluation based on 38 C.F.R. § 4.29 for hospitalization for surgery in relief of a back disability lasting more than 21 days is remanded. Entitlement to a temporary total evaluation based on 38 C.F.R. § 4.30 for convalescence following surgery in relief of a back disability lasting more than 30 days is remanded. Entitlement to a total disability rating based on unemployability as due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1974 to September 1976. By way of history, these matters were each denied in a September 2018 decision of the Board. Following the Veteran's appeal, the United States Court of Appeals for Veterans Claims (Court) in February 2020 vacated the denied claims and remanded the case back to the Board for further development of the record, to specifically include obtaining an addendum opinion regarding the likely etiology of the claimed back disability. Upon receipt of the claim, the Board in November 2020 further remanded the case to the Agency of Original Jurisdiction (AOJ) in order to procure the requested addendum opinion. Following the issuance of a January 2021 supplemental statement of the case continuing the denial of all four claims, the case was returned to the Board. Most recently, in June 2021 the Board remanded the matters again in order to procure yet another addendum opinion that addressed the likely etiology of the claimed back disability. After securing said opinion in October 2021 and obtaining a clarifying statement later that month from the VA medical professional who offered the opinion, the AOJ in an October 2021 supplemental statement of the case once again denied all four claims. The case was then returned to the Board for its present adjudication. 1. Entitlement to service connection for a back disability is remanded. Regrettably, the Board finds that the AOJ has repeatedly failed to comply with the directives outlined in the previous remand instructions as to the queries that the Board, and by extension, the Court, must have addressed prior to further adjudication of these matters. Specifically, the Court instructed the Board to secure an opinion addressing the likely etiology of the claimed back disability supported by a well-reasoned rationale that took into consideration the credible lay testimony provided by the Veteran as to the incidence of his back symptomatology. The Board also notes that the Court highlighted that the most contemporary VA opinion of record at the time of the Board's September 2018 decision was a February 2017 VA back examination that was inadequately supported by a rationale, as the examiner detailed only that the Veteran's back disability was likely a result of the natural aging process and offered no explanation for that conclusion. Pursuant to the Board's November 2020 remand instructions, the likely etiology of the back disability was evaluated by a VA examiner in December 2020, who opined that it was less likely than not that the Veteran's diagnosed back disability was incurred in or is otherwise attributable to service. In support thereof, the examiner noted that there were no complaints of back symptomatology in service and no record of any treatment for back symptomatology for many years after service. The examiner instead attributed the back disability to the natural aging process and offered no explanation as to why. In remanding these matters once again, the Board in its June 2021 opinion highlighted that the December 2020 examiner did not provide any explanation as to why she concluded that the Veteran's back disability was likely related to the natural aging process, as opposed to being at least partly attributable to his service. The Board in the June 2021 opinion also noted that the December 2020 examiner did not address a September 2011 correspondence from the Veteran's treating physician, a Dr. N.O.V., who found a positive correlation between the Veteran's current back disability and activities of his active service. In response to the Board's June 2021 remand instructions, the likely etiology of the back disability was again evaluated by a VA medical professional, who issued an October 2021 opinion finding that it was less likely than not that the current back disability was incurred in or is otherwise attributable to service. In support thereof, the examiner noted the lack of in-service treatment for or complaints of back symptomatology and for over 30 years following service. Regarding the September 2011 correspondence from Dr. N.O.V., the examiner dismissed the positive etiology opinion on the grounds that it was "not based on material evidence". The AOJ also secured an addendum statement from the October 2021 examiner clarifying the rationale for the prior negative etiology opinion. Specifically, the AOJ requested that the examiner discuss the likelihood that the back disability was in part attributable to wear and tear from the physical activity of the Veteran's in-service duties, as suggested by Dr. N.O.V. in the September 2011 correspondence. The examiner in the addendum statement acknowledged that the Veteran would experience some wear and tear due to the physical strain of his duties while in service but reiterated that the Veteran did not report experiencing any back pain until 2007, over 30 years after his discharge from service. The examiner concluded by stating "[i]t makes little medical sense to speculate that the Veteran's back pain came from over 30 years ago when there is no documentation." See QTC Addendum Report, October 7, 2021. As stated, the Board still does not find that it can rely on the examinations and opinions of record, even when considered cumulatively. To begin, the examiner's opinions together have not addressed fully the contentions and findings of Dr. N.O.V. in the September 2011 correspondence. The December 2020 examiner did not even mention the September 2011 correspondence, while the October 2021 examiner dismissed the probative value of the correspondence on the grounds that it was not based on "material evidence". While it is accurate to note that Dr. N.O.V. did not indicate that he reviewed the claims file prior to issuing the September 2011 correspondence, this wholesale disregard for the evidentiary value of his opinion overlooks the probative value of the Veteran's own lay statements as to the physical strain he experienced while in service and the impact of wear and tear during service on his back, as this lay evidence presumably formed the basis for Dr. N.O.V.'s opinion. Indeed, although the October 2021 examiner did acknowledge that the Veteran reported experiencing wear and tear on his joints during service, he still did not explain why he found it more likely that post-service physical strain on the Veteran's body, particularly from his work as a postal service worker, resulted in his currently diagnosed back disability. In summation, the Board cannot conclude that VA has satisfied its duty to provide the Veteran with a thorough and contemporaneous examination, as directed by the Court in its February 2020 Joint Motion for Partial Remand. Green v. Derwinski, 1 Vet. App.121 (1991); Snuffer v. Gober, 10 Vet. App.400 (1997). The question of whether the physical strain experienced by the Veteran in service contributed to his currently diagnosed back disability remains unresolved, especially in light of the positive opinion from Dr. N.O.V. in his September 2011 correspondence. The Board also finds a considerable lack of clarity in the October 2021 examiner's utilization of speculation language, and requests that if any opinion regarding the potential contribution of in-service physical wear and tear on the Veteran's back disability requires speculation, this must be fully explained. Remand is therefore necessary in order to secure an opinion with a rationale that adequately addresses Dr. N.O.V.'s conclusion that the Veteran's in-service physical duties contributed to his later development of a back disability, in accordance with the Board's prior remand instructions, which are copied in large part below. Stegall v. West, 11 Vet. App. 268 (1998) 2. Entitlement to a temporary total evaluation based on 38 C.F.R. § 4.29 for hospitalization for surgery is remanded. 3. Entitlement to a temporary total evaluation based on 38 C.F.R. § 4.30 for convalescence following surgery is remanded. 4. Entitlement to TDIU is remanded. The Veteran's claims for TDIU and temporary total evaluations are part and parcel to his service connection claim for a back disability, which is being remanded herein. As noted by the Court, such claims are therefore considered inextricably intertwined, and must also be remanded. Harris v. Derwinski, 1 Vet. App.180 (1991). The matters are REMANDED for the following action: Return the claims file to the individual who provided the October 2021 VA examination and addendum statement, or to a different qualified VA medical professional if that individual is not available, in order to secure an addendum opinion regarding the likely etiology of the claimed back disability. The electronic claims file must be made available to the examiner for review in connection with the opinion, and they must indicate that they reviewed the claims file in full prior to setting forth any opinion. Following a claims file, the chosen examiner must provide an opinion as to whether it is at least as likely as not (an approximate balance of positive and negative evidence) that the Veteran's currently diagnosed back disability is related to the Veteran's service, including continuous standing and walking with equipment on his back. A complete rationale for all opinions must be provided, and must reconcile all opinions with those already of record, to specifically include the September 2011 private opinion from Dr. N.O.V. The Veteran's lay contentions must be fully considered as well. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The examiner must provide any and all opinions as to etiology in the form of a probability and must provide a complete rationale for any opinion expressed. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.